Re: Effects of Indiana SB 50 to SB 101 (the Indiana RFRA)

Dear Mr. Miller:

I serve as General Counsel of Liberty Institute. Liberty Institute is the largest law firm dedicated solely to preserving religious liberty in the United States. We are a nonprofit, public interest legal organization that provides advice, representation, and education on a pro bono basis. Our clients range from (1) veterans organizations in the defense of memorials containing religious imagery to (2) churches and other faith-based ministries who are threatened with adverse legal action because of their religious beliefs to (3) public school students who want to practice their faith to (4) state and local governments who seek our advice and defense on religious liberty issues. Currently, Liberty Institute is working on over 100 legal matters in over 20 states involving religious liberty issues.

LibertyThumbYou asked Liberty Institute to review the effects that implementation of Indiana SB 50 would have on Indiana SB 101 (“Indiana RFRA”), with particular attention to whether SB 50 is a substantive change to SB 101 or a mere technical clarification. It is our opinion that SB 50 is a significant and substantial change to SB 101 that, in many respects, gives Hoosiers even less protection for religious freedom than had SB 101 and SB 50 never been passed. In effect, SB 50 removes protections that would have been recognized under Indiana’s Constitution. Not only does SB 50 remove these protections, it is particularly egregious because it explicitly permits criminal prosecution of religious adherents who are simply trying to be faithful to their religious convictions.

As Prof. Doug Laycock’s letter explains, the Indiana Constitution has been interpreted to permit the legislature to “qualify” fundamental rights so long as those rights are not completely eliminated. SB 50 is such a qualification, effectively removing important religious protections from those covered by either Indiana RFRA or the Indiana Constitution. While SB 50 states that it does not “negate any rights available under the Constitution of the State of Indiana,” there is a difference between negating a right and defining the contours of a right, which is what SB 50 appears to do.

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